Academic journal article
By Li, Jieli
Sociological Focus , Vol. 42, No. 3
Where China is likely to move in its sociolegal development is an enduring topic for sociological inquiry in the areas of law and social control. A general consensus has emerged that the Chinese legal system has transformed itself, as shown by the court's increased role as a medium of dispute resolution. But the debate remains as to whether such transformation means that China is in transition from "the rule by men" to "the rule of law" - the kind of legal formalism that is commonly practiced in Western countries. The authors of "The Developing Trend of the People's Mediation in China" ("Developing Trend" hereinafter) touch upon this issue, and specifically turn our attention to the development of the people's mediation institution - an area that has been underresearched in China's sociolegal reconstruction. In this sense, "Developing Trend" is a valuable addition to the literature of sociolegal development in contemporary China.
As we know, there is little controversy in general literature about the difference between the traditional Chinese grassroots mediation mechanism and its Western counterparts in terms of how disputes were resolved (Wall and Blum 1991). Yet we would like to know more about how much China's market-oriented reform over the past 20 years has impacted its traditional institution of grassroots mediation in conflict resolution. The authors of "Developing Trend" observed three major changes brought about by the reform: (1) the traditional institution of people's mediation has lost its vigor and efficiency as the result of dramatic modernization and urbanization, because Chinese society is transforming itself from "an acquaintance society" to "a stranger society" in the city and a "semi-acquaintance society" in the rural areas. (2) Therefore, the state is embarking on legal formalization, so that more people resort to the judicial approach to settle civil disputes - an indication that China is transitioning to the use of law for conflict resolution. But (3) as the court system gets overburdened with the caseload, and as the vast rural area is not yet accustomed to using the judicial approach, the state has recently implemented a campaign to "revitalize" the weakened traditional mediation institution in an attempt to make it "standardized and systematized." It is to "serve as the first line of defense against social conflicts and negative mass incidents." The authors conclude that through legal reforms traditional mediation will eventually evolve into an auxiliary part of the formal legal system, which, with the aid of modernization as well as democratization, will transform China from "rule by men" into "rule of law."
Although I am not disputing those three changes, I challenge the authors' general assumption that the changes necessarily point to a gradual transition of China's social control mechanisms into the "rule of law." The authors do not clearly define what the "rule of law" really means: Does formalization (or government regulation) itself mean the "rule of law"? I contend that, in order to demonstrate a trend toward the rule of law, one has to show that there is real judicial independence in conflict resolution, with grassroots mediation being part of it. The authors of "Developing Trend" have not done that. Because of this ambiguity in the main thesis, some analyses presented in the article are less convincing. We are brought back to an old research question: What is the nature of China's sociolegal reform and where is the reform headed?
In my 1996 article on China's sociolegal reform (Li 1996), I argued that China's political structure makes it unlikely that the Western style of codified fotmal legality will work as a suitable social control option for China. It is not because Chinese people prefer informal community-based mediational resolution over Western-style formal court settlement. It is rather that China's judicial system is so deeply integrated into the political institutions that it can hardly function in a nonpartisan and independent manner. …